How Activist Is the Supreme Court?

WASHINGTON — JUSTICES Antonin Scalia and Ruth Bader Ginsburg are
ideological antagonists on the Supreme Court, but they agree on one
thing. Their court is guilty of judicial activism.

“If it’s measured in terms of readiness to overturn legislation, this is
one of the most activist courts in history,” Justice Ginsburg said in
August in an interview with The New York Times. “This court has
overturned more legislation, I think, than any other.”

But Justice Ginsburg overstated her case. If judicial activism is
defined as the tendency to strike down laws, the court led by Chief
Justice John G. Roberts Jr. is less activist than any court in the last
60 years....

It is perhaps unsurprising that the liberal court led by Chief Justice
Earl Warren from 1953 to 1969 invalidated federal, state and local laws
at almost twice the rate of the Roberts court. But the more conservative
court that followed, led by Chief Justice Warren E. Burger from 1969 to
1986, was even more activist, striking down laws in almost 9 percent of
its cases, compared with just over 7 percent in the Warren court and
just 4 percent in the Roberts court. The court led by Chief Justice
William H. Rehnquist from 1986 to 2005 was also more activist than the
current one, at 6.4 percent....